Patna High Court
The Secretary Of State For India In ... vs Khaja Mahomed Jan And Ors. on 8 February, 1917
Equivalent citations: 39IND. CAS.555, AIR 1917 PATNA 249
JUDGMENT Mullick, J.
1. This appeal arises out of a decision of the Subordinate Judge of Gaya decreeing a claim for malikana in respect of a mahal described in the plaint as Joypur Dumraon, Taluk Gurua, Pergannah Sherghatty, Zillah Gaya, Towzi No. 4579.
2. It appears that one Raja Kadir Buksh Khan was settlement holder in 1793 in respect of a taluk called Gurua Tirwa, situated in Pergannah Sherghatty, Zilla Behar. That taluk fell into arrears for Government revenue and was sold in 1812 at a revenue sale to Maharaja Miterjit Singh of Tikari. In 1814 and 1818 Miterjit Singh made gifts of Mahal Joypur and Mahal Dumraon to his illegitimate son Raja Khan Bahadur. One Amirunnissa, whose name is frequently mentioned in the subsequent settlement proceedings, was one of the heirs of Raja Khan Bahadur and the present plaintiffs derive title from the said Amirunissa.
3. In 1827 the Government resumed certain uncultivated villages in Mahal Joypur and mahal Dumraon under the provisions of Regulation II of 1819, and in 1828 and 1829 the Government appear to have held khas possession of some of the said villages. In 1830 the whole of the resumed land was temporarily settled with Raja Khan Bahadur. In 1835 there was another temporary settlement, and in 1842 there was a further temporary settlement for 20 years at an annual jama of Rs. 2,433-4-10. In 1861 there was at first a temporary settlement for ten years, but that settlement was cancelled and a settlement of the estate was made in 1864 at rates of revenue progressing from Rs. 3,854-8-0 to Rs. 4,898-8-0, the last rate being the revenue finally fixed in perpetuity for the estate. Neither the plaintiffs nor their predecessors made any claim for malikana in respect of any portion of the said amount of Rs. 4,898-8-0 till the present suit, which was filed on the 21st of September 1911. Their claim now is that although the revenue fixed in perpetuity in 1864 has been paid without demur for over fifty years, they are entitled in the present suit to a declaration that the sum of 10 per cent. on Rs. 4,898-8-0, namely, Rs. 489 per annum is payable to them as malikana. The Secretary of State, the defendant, denies the plaintiffs' right to any malikana.
4. Now the first question that arises is as to the title of the plaintiffs, i.e., whether the plaintiffs or their predecessors were the proprietors when the Permanent Settlement was made in 1864. That takes us back to the question whether at the time of the resumption proceedings of 1827 the predecessors of the plaintiffs had any title in the properties in suit.
5. On behalf of the Secretary of State it is contended that the lands which are now included in Towzi No. 4579 and which were formerly uncultivated lands of Mahals Joypur and Dumraon were never assessed to revenue at the time of the Decennial Settle merit of 1793 and that, therefore, in 1827 the Collector was at full liberty to resume those lands under the provisions of Regulation II of 1819.
6. To us in this suit no evidence has been shown to prove that these lands were assessed to revenue in 1793, but we have been referred to a rubakari of the Superintendent of Settlement of the Districts of Patna and Behar dated the 25th of November 1842 and to the statements contained therein, as showing that the title of Kadir Buksh and Koer Hussain in the lands now in suit was recognized as far back as 1839 in a suit brought before the principal Sudder Amin of the District of Behar by Riasat Bibi the heir of Kadir Buksh Khan on the one side against Government, Raja Khan Bahadur, Raja Miterjit Singh and some thikadars of the property on the other. It is contended by the learned Counsel for the respondent that the Sudder Amin decided firstly that Kadir Buksh Khan and hie co-sharers had title not only to the cultivated but also to the uncultivated portions of Taluka Gurua and Tirwa and that that title had passed at the auction sale of 1812 to Maharaja Miterjit Singh. It is further contended that although the particular point decided by the Sudder Amin was that Kadir Buksh Khan and his co-sharers were no longer entitled to settlement as against Raja Khan Bahadur, yet there was a finding that Raja Khan Bahadur was the proprietor of all the lands in Mahals Joy pur and Dumraon.
7. We have most carefully perused this settlement rubakari and are unable to say that it establishes that Raja Khan Bahadur was a proprietor with legal title to the cultivated and uncultivated lands of Mahals Joypur and Dumraon 1839. The judgment of the Sudder Amin is not before us, and we have only the statement of Mr. James Colvin, the Settlement Commissioner, as to the contents of that judgment and we are by no means certain that Mr. James Colvin's view of what the Sudder Amin decided is in fact what was decided in the suit.
8. In the next place it is to be observed that Government, Miterjit Singh and Raja Khan Bahadur Khan were all co-defendants in the suit and as between co-defendants, unless there war a special issue as to title, the decision of the Sudder Amin could not have possibly operated. All that the defendants in that suit acting jointly were concerned to say was that Kadir Buksh Khan the applicant for settlement was not entitled to settlement from the Collector and all that the Sudder Amin decided was that Khan Bahadur Khan was the person in possession and was therefore entitled as such to settlement. Therefore, in my opinion the judgment of the Sudder Amin of the 10th of June 1839 does not prove any legal title in the predecessors of the plaintiffs. On the contrary I am satisfied that proprietary title vested in Government. But assuming that a legal title was established in the plaintiffs' predecessors let us examine what the position is. It appears that in 1842 settlement was made with Raja Khan Bahadur Khan and his co-sharers of 47 villages on sudder jamas progressing from Rs. 2,238-11-10 to a sum which has not been disclosed in the evidence. The learned Counsel for the respondents urges that this settlement was made under Section 7 of Regulation VII of 1842 as well as Section 8 of Regulation VII of 1822. He contends that as a proprietor he was entitled to a minimum of 20 per cent, of the gross collections and that in addition to this he was under Section 8 entitled to 10 per cent. of the amount payable to Government by the lessees of the lands. Now Section 7 of the Regulation empowers the Collector to renew expired leases or settlements with the previous settlement-holders, provided that a sum not less than 20 per cent. of the gross collections is reserved for the profit of the settlement-holder.
9. Section 8 provides that when the proprietor declines to renew his engagement, Government may settle waste lands within the estate with lessees and give the proprietor 10 per cent. on the rent reserved by the leases in lieu and bar of all claims to or in the waste lands so granted, or of such other perquisites or privileges as by the custom of the country they, the proprietors, may appear in such cases entitled to receive. Now is there anything in the Settlement of 1842 to suggest that the Settlement was made not only under Section 7 but also under Section 8? To my mind the answer is perfectly plain. There was not the slightest suggestion that in 1842 any allowance was made under Section 8 or that any idea entered the mind of the Collector that the proprietor was entitled to claim something under Section 8. The Settlement shows that out of the gross collections 10 per cent. was deducted for collection expenses, 5 per cent. for earth work and 20 per cent. for profits and malikana. That 20 per cent. clearly is the 20 per cent. contemplated by Section 7.
10. Here the predecessors of the plaintiffs were taking settlement as proprietors and under Section 7 they were renewing their engagement with the Crown and they were entitled to retain 20 per cent. as profits on the property.
11. It is contended by the learned Counsel for the respondents that where the estate consists entirely of jungle, the proprietor taking settlement of the estate is entitled not only to 20 per cent. under Section 7 but also to a further 10 per cent. under Section 8 as a reward for bringing jungle lands into cultivation. There is nowhere in the Regulation any room for such a contention. Section 8 is a section which empowers the Collector, when re-settling an estate, to separate the excess of waste lands from the cultivated portion and to settle those waste lands with third parties and to buy out the proprietor by paying him 10 per cent. of the rent reserved by the leases of those settlement's. It certainly does not contemplate that where the proprietor himself takes settlement he is entitled to an additional 10 per cent. on the Government revenue fixed upon the estate for the cultivated and uncultivated portion. If the contention of the learned Counsel were to be accepted it would be difficult to see what would be the title of the plaintiffs in the jungle lands. They would first of all be proprietors and then they would be lessees under themselves and further it would be difficult to see what claims in the waste lands or perquisites or privileges they had surrendered on payment of the said 10 per cent. Section 10 requires the proprietor to surrender his title to the jungle lands and to consent to a division of the estate into cultivated and uncultivated. If the proprietor does not accept settlement of a mahal the whole of which is jungle, then the Collector is at liberty to settle it with third parties and give the proprietor malikana allowance under Section 5. If he does accept settlement, then he is entitled to a minimum of 20 per cent. on the estimated gross collections. Or if the Collector chooses he may settle the jungle permanently with third parties and in that case the proprietor loses all title to the property and gets a fixed sum of 10 per cent. on the rents reserved by the leases. In our view that is the meaning of Sections 5, 7 and 8 of the Regulation. Therefore, we are quite satisfied that in 1842 the Collector did not and could not have given the plaintiffs any allowance under Section 8 of Regulation VII of 1822.
12. Let us next see what was the position in 1864. In 1864 the Government revenue was permanently settled at Rs, 4,898-8-0 to take effect from the 1st of May 1883. The plaintiffs rely upon a document called an "arsatha" prepared by a Collector named Mr. Drummond. At the foot of this document there is an entry which purports to show that the Government revenue is Rs. 4,408-11-1 and that the malikana Rs. 489-13-6. Now we do not know for what purpose this "arsatha" was prepared. Possibly Mr. Drummond may have thought that malikana was payable to the proprietors in respect of this estate. He does not say under what section of the Regulation this malikana was calculated. But assuming that it was his intention to give malikana under Section 8, it dose not follow that his view was adopted by Government. Indeed it appears that the actual settlement made in perpetuity with Amirunnissa the predecessor of the plaintiffs made no mention whatever of any proprietary allowance payable to the proprietors. The Government revenue was fixed at Rs. 4,898-8-0 without any reservation on account of malikana or other proprietary allowance to the settlement-holder and as we have already seen, Amirunnissa and her successors acquiesced in this decision for over fifty years. It is reasonable to infer, therefore, that it was agreed between the parties that even if malikana was payable no malikana would in fact be paid. That was the arrangement on which the settlement in 1864 was made and that arrangement must continue.
13. The learned Counsel for the respondents has suggested that although in 1842 he may not have been diligent enough to claim malikana, he is not debarred from claiming the same out of the revenue fixed in 1864. But in our view the malikana in not payable at all and if it was payable, it was arranged between the parties that the sum of Rs. 4,898-8-0 was to be payable by Government free of all claims on the part of the Settlement holder. Therefore, there is no justification now for reopening the settlement and assessing a sum of 10 per cent. on the Government as an additional sum payable to plaintiff. The unit and the appeal are, therefore, decreed with costs. The costs in this Court will be payable by all the respondents jointly and in the lower Court by the plaintiffs only.
Jwala Prasad, J.
14. The plaintiffs are not at all entitled to claim malikana. The lands in question were resumed under Regulation II of 1819 as being not included in Taluk Gurua at the time of the Decennial Settlement of 1793, which subsequently was made permanent. The plaintiffs' predeces-sors-in-interest took settlement from Government of the mahal in question in 1827 and also at the various succeeding temporary settlements of the mahal. it is not open now to the plaintiffs to contend that the lands of the mahal were included in the area settled in 1793 and that the plaintiffs' predecessors had proprietary interest in the lands in question. The result of the proceedings and the decisions of the Board of Revenue embodied in the several rubakaris two of which, that is, of 1842 and 1864, are on the record, is final under Regulation II of 1819 to show that the lands were liable to assessment and did not appertain to any estate previously settled in 1793. The plaintiffs' predecessors, having thus taken settlement from Government, are precluded from now disputing the right of Government to settle the lands under Section 24 of Regulation II of 1819. The plaintiffs' predecessors were, therefore, made liable to pay the entire revenue assessed for the lands without deductions of any malikana or proprietary allowance. Malikana or proprietary allowance under Regulation VII of 1822 is allowed to outgoing proprietors, that is, to the previous lessees of Government who do not take the settlement of the mahal and engage to pay Government revenue therefor. I do not, therefore, think that the plaintiffs or their predecessors were entitled to receive any malikana, as they had no title to hold the lands and their possession was declared invalid and illegal. Even if it be conceded that they were the proprietors of the estate, the fact that they themselves took the settlement of the lands would disentitle them to claim any malikana under Regulation VII of 1822.
15. Reliance has been placed by the learned Counsel for the respondents upon Section 8 of Regulation VII of 1822. In the first place, that section contemplatess the grant of allowance of 10 per cent. on the amount payable to Government by the lessees where the lands are settled with persons other than the zemindars or the proprietors of the land. The proprietary allowance under Section 8 is given to the zemindars by way of compensation for their parting with the lands and 'in lieu and bar of all their claims to or in the waste lands', when the lease is granted to persons other than the zemindar. When the plaintiffs' predecessors themselves took the lease they continued to be in possession as zemindars and did not lose anything or abandon their claim to or in the lands. They had no right to be compensated and could not be allowed any allowance under that section.
16. In the second place, the section applies to persons who establish a proprietary right in the lands settled. In the present case the plaintiffs' predecessors had absolutely no right of property in the lands in question as they were held to be in possession without any title, and the lands were, therefore, resumed and assessed to revenue under Regulation II of 1819. To my mind, therefore, Section 8 has no application at all in this case. The plaintiffs have nowhere said in the plaint that the Government had no right to resume the lands and that they were the rightful proprietors of the lands as included in the area settled with them in 1793.
17. On the other hand, in paragraph 5 of the plaint and in fact throughout it has been the case of the plaintiffs that the lands were resumed by means of rubakar in 1827 under Regulation II of 1819. The plaintiffs further admit in the plaint that the Government remained in khas possession for two years and then settled the mahal temporarily for ten years in 1830 with the predecessors. in interest of the plaintiffs.
18. The claim to malikana is obviously based upon the mention of the word "malikana" in the arsatha prepared by the Collector for the purpose of the settlement of 1864. The arsatha is a kind of statement containing certain information as regards the area, the nature of the land, and the rents and profits that the lands were capable of yielding, for the purpose of affording sufficient data for the calculation of the revenue to be assessed upon the estate. The arsatha is prepared at a certain stage of the settlement and is not at all conclusive of the facts stated therein, unless it is adopted in the final settlement of the estate. The mere mention of malikana or the amount thereof in the arsatha in question will not entitle the plaintiffs to claim malikana in this case. It may have been thought proper to calculate the malikana in the arsatha in order to show what would be the amount of malikana if this temporarily settled estate were settled with somebody else and not with the previous lessees. But the rubakari of settlement dated 4th March 1864 (Exhibit 1) does not mention the malikana recorded in the arsatha. The rubakari assesses the revenue of Rs. 4,898-8-0 as payable in respect of the estate by the lessee to Government. As the settlement of the estate was made with the previous holders of the estate no malikana was at all payable and was, therefore, not specified in the rubakari itself. The aforesaid rubakari dated the 4th of March 1864 is the record of the last settlement of the estate. The lease or the patta granted by Government to the respondents' predecessors-in-interest has not been produced in this case. If malikana was allowed to the lessees, surely it would have been embodied in the lease which is the final document regarding the terms between the Government and the lessees, upon which the settlement was taken. The non-production of this document necessarily leads to the conclusion that no malikana has been mentioned therein. The lease presumably is in accordance with the rubakari of 1864 (Exhibit 1), which as already stated does not mention malikana at all. It is significant that the entire revenue of Rs. 4,898 8--0 was paid by the plaintiffs' predecessors without any deduction of malikana and that no malikana was ever claimed or received by the plaintiffs' predecessors or the plaintiffs since the settlement of the estate in 1827. It is expressly stated in the sale-deeds, Exhibits 13 and 14 of the paper-book, that it was not at all known that the plaintiffs' predecessors had any malikana right in this estate and that the plaintiffs' predecessors came to know of their malikana right for the first time in 1908. This also clearly shows that the lessees, or the predecessors of the plaintiffs, never understood that any malikana was granted by Government to them in respect of this estate, or they would not have been in utter ignorance of their right as to the malikana.
19. For the above reasons I hold that the plaintiffs have failed to prove that they are entitled to receive the malikana and I agree with my learned brother in the order proposed by him. The appeal should be decreed with costs.